Junk food fight heats up

New York's big soda ban goes down, but the battle to regulate junk food is far from over.

Mary Altaffer/AP/File

McDonald's employees serve a meal containing a large soda, in New York.

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March 25, 2013

By Schuyler VelascoStaff writer

The fight between food purveyors and health advocates over junk food is getting intense. From the successful campaign against trans fats to San Francisco's ban on toys in McDonald's Happy Meals to first lady Michelle Obama's campaign against childhood obesity, it's clear that makers of so-called junk foods face a widening public relations battle.

In the latest round, the food industry notched a big win. Within hours of New York City's ban on big sugary drinks going into effect March 11, a New York State Supreme Court justice struck it down. The judge blasted the city for regulatory overreach, because it didn't consult the city council. He also called the rule "arbitrary and capricious," because it didn't apply to all establishments in the city or all high-calorie sweetened drinks.

More battles lie ahead. After New York proposed controversial soda regulations last year, the mayor of Cambridge, Mass., weighed in on the desirability of doing the same in her city.

"Once you open the door a crack for these sorts of things, they don't go away," says Ruth MacDonald, chair of the food science and human nutrition department at Iowa State University in Ames. "There probably will be more of these things."

Some advocates liken the fight between food purveyors and health advocates to what happened decades ago with the major cigarette companies. Advocates finally got huge restrictions on smoking and cigarette sales despite furious industry lobbying. But there's one crucial difference: Food is a lot more complicated than tobacco. With sugar and fat so prevalent in food, "it gets just a little messy when you pinpoint which items you're not going to sell," says Dr. MacDonald.

The loopholes in the New York City ban were one factor in sinking it. For example, the city would have fined restaurants that served sugary drinks in cups containing more than 16 ounces. But convenience stores (including 7-Eleven and its "Big Gulp" drinks) were exempt because they are regulated by the state; so were drinks that were more than 50 percent dairy, like a milkshake.

The food industry cheered the ruling. "The court's decision upholds a principle that most of us already believe in – freedom of choice," said the American Beverage Association, an industry group, in a statement. "Health cannot be legislated, mandated or decreed – it must be learned and practiced by individuals."

The goal of such initiatives is to make people more conscious of their eating habits, rather than controlling them, counters Nancy Neiman Auerbach, a professor of food politics at Scripps College in Los Angeles. "You can unconsciously eat a massive bag of Cheetos; you can't do that with real foods. [Mayor Michael] Bloomberg's crusade is pointing out how difficult it is to attack this very broad-based health concern."